Court rules on German habitat case

A prickly legal question of just how much a state has to do to meet its conservation requirements has been settled in a German case.

Bund Naturschutz in Bayern

The European Court of Justice handed down a judgement in a case concerning development and protection of sites which are candidates to be selected as sites of Community importance under Directive 92/43/EC on conservation of natural habitats and of wild flora and fauna.

The case centred around the whether Member States were required to implement protective measures in regard to sites they had put forward for consideration by the Commission, what level of protection Member States were required to afford to such sites, and what form implementation of such protective measures was to take.

The Court stated that the protective measures detailed in Article 6 (2) to (4) of the Directive only apply when sites have been placed on the list of sites selected as sites of Community importance.

However, under Article 4(1) of the Directive, Member States are required to take appropriate measures to protect such sites as sites eligible to be identified as sites of Community importance for the purpose of safeguarding the ecological interest contained therein.

The Court went on to reason that when the Commission comes to make its decision as to which sites to include in the list, the sites must reflect the state they were in when the scientific evaluations of potential sites were carried out.

Therefore, Member States must take appropriate protective measures to maintain the ecological characteristics of the sites. The necessary corollary of this is that Member States may not authorise interventions or developments which may entail a risk of seriously compromising the ecological characteristics of a site, as these are defined in Annex III of the Directive.

In relation to the issue of implementation of such measures, the Court stated that the detailed procedural rules are for the individual Member States to formulate and implement, but that such rules must not be less favourable than those that govern similar domestic situations and do not render impossible or make excessively difficult the exercise of rights conferred by Community law.